Monday, 25 June 2012

Law 1. Behind every successful criminal is a successful criminal lawyer

Law 2. Behind every successful criminal lawyer is at least one 'uncle' judge.

Uncle judge and bench hunting may or may not be features peculiar to the Indian judicial system. The Bar Council of India however bars any advocate from appearing before a judge who is his/her relation. But there is nothing preventing the relation of a judge from appearing before a 'brother' judge whose relation can appear before him/her. To illustrate, if AS is the advocate son of judge A and BS is the advocate son of judge B, AS can appear before B and BS can appear before A and no one can be wiser or question as to how AS and BS continue to get favourable orders whenever they appear before B and A respectively! This in essence is the phenomenon of 'uncle' judges and there cannot be father/mother/brother/sister judges. To understand how 'uncle' judges contribute to corruption and crime look at former Chief Justice of India, K G Balakrishnan's history and how his family members raked in the moolah when he was a judge of the high courts/ apex court. Bench hunting involves not only advocates manipulating to get their cases listed before uncle judges, it can also extend to advocates managing to get their case listed before particular judges whose whims and fancies are well known in those circles.

"It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system require unusual and unorthodox remedies."-Eminent jurist H.M.Seervai in his book, Constitutional Law of India

This was the very quote that Binod Kumar Roy, Chief Justice of the Punjab and Haryana High Court, used to justify his five-page administrative directive restricting relatives of certain judges from appearing before them. The Bar Council rule is clear that lawyers can't appear before their own kin. Roy's directive identified a dozen judges whose relatives are advocates (see All in the Family) and forbade them from appearing before any of these 12. This ensured that a judge cannot help even a fellow judge's kin.

Within a month of this directive, the SC collegium recommended his transfer to the Patna High Court.

Sunday, 24 June 2012

We need a permanent solution to this tussle over
emoluments so that the armed forces need only
confront the enemies of the nation, says T.R.Ramaswami
,IAS.

In the continuing debate on pay scales for the armed forces, there has to be a
serious and transparent effort to ensure that the country is not faced with an
unnecessary civil-military confrontation. That effort will have to come from
the netas, who are the real and true bosses of the armed forces and not the
civil bureaucracy.

A solution may lie in what follows. This
country requires the best armed forces, the best police and the best civil
service. In fact that is what the British ensured.. By best one means that a
person chooses which service he wants as per his desires/capabilities and not
based on the vast differential in prospects in the various services.

How much differential is there?

Take Maharashtra, one of the most parsimonious
with police ranksthus still retaining
some merit - The 1981 IPS batch have become 3-star generals, the 1987 are
2-star and the 1994 1-star.

In the army the corresponding years are 1972, 1975,
1979. i.e. adifferential of 10-15 years. While the differential is more with theIAS, the variance with
the IPS is all the more glaring because both are
uniformed services and the grades are "visible" on the shoulders.

First some general aspects. Only the armed forces
are a real profession where you rise to the top only by joining at the
bottom. < few people have realised
this, and its long-term implications when compared to other professional
streams....

We have had professors of economics become
Finance Secretaries or even Governors of RBI. We have any number of MBBSs,
engineers, MBAs, in the police force though what their qualifications lend to
their jobs is a moot point. You can join at any level in the civil service,
except Cabinet Secretary. A civil servant can move from Animal Husbandry to
Civil Aviation to Fertilisers to Steel to yes, unfortunately, even to Defence..

.....But the army never asks for
Brigade Commanders or a Commandant of the Army War College or even Director
General Military Intelligence, even from RAW or IB. Army officers can and have
moved into organizations like IB and RAWbut it is never the other way round. MBBS and Law
graduates are only in the Medical or JAG Corps and do nothing beyond their
narrow areas.

Every Army Chief - in any army - has risen from being a commander of
a platoon to company to battalion to brigade to division to corps to army. In
fact the professionalism is so intense that no non-armoured corps officer ever
commands an armoured formation, the “first and possibly only exception in
world military history" is General K. Sundarji.

Perhaps it is this outstanding professionalism that irks the civil services.

Next, one must note the rigidity and steep pyramid
of the army's rank structure. In the civil services any post is fungible with
any grade based on political expediency and the desires of the service. For
example I know of one case where one department downgraded one post in another
state and up-graded one in Mumbai just to enable someone continue in Mumbai
after promotion!

You can't fool around like this in the armed
forces. A very good Brigadier cannot be made a Major-General and continue as
brigade commander. There has to be a clear vacancy for a Major General and even
then there may be others better than him. Further the top five ranks in the
army comprise only 10% of the officer strength. Contrast this with the civil
services where entire batches become Joint
Secretaries!

Even the meaning of the word "merit" is
vastly different in the army and the civil services. Some years back an officer
of the Maharashtra cadre claimed that he should be the Chief Secretary as he
was first in the merit list. Which merit list?
At the time of entry more than 35 years before! The fact is that this is how
meritis decided
in the IAS and IPS. Every time a batch gets
promoted the inter-se merit is still retained as at the time of entry. In other
words if you are first in a batch at the time of entry, then as long as you get
promoted, you continue to remain first! This is like someone in the army
claiming that he should become chief because he got the Sword of Honour at the
IMA.

Even a Param Vir Chakra does not count for
promotion, assuming that you are still alive.

In the armed forces, merit is a continuous process - each time a batch is
promoted the merit list is redrawn according to your performance in all the
previous assignments with additional weightage given not only to the last one
but also to your suitability for the next one.
Thus if you are a Brigade Commander and found fit to become a Major General,
you may not get a division because others have been found better tohead a division. That effectively puts an end to your promotion
to Lt. General.

The compensation package must therefore
address all the above issues. In each service, anyone must get the same total
compensation by the time he reaches the 'mode rank'
of his service. "Mode" is a statistical term â€“ the
value where the maximum number of variables fall.

In the IAS normally everyone reaches Director and in the IPS it
is DIG. In
the army, given the aforementioned rank and grade rigidities and pyramidical
structure, the mode rank cannot exceed Colonel. Thus a Colonel's gross career earnings (not salary
scales alone) must be at par with that of a Director. But remember that a
Colonel retires at 54, but every babu from peon to Secretary at 60 regardless
of performance.

Further, it takes 18-20 years to
become a Colonel whereas in that time an IAS officer reaches the next higher
grade of Joint Secretary,
which is considered equal to a Major General.

These aspects and others - like postings in non-family stations - must be
addressed while fixing the overall pay scales of Colonel and below. Thereafter,
a Brigadier will be made equal to a Joint Secretary, a Major-General to an
Additional Secretary and a Lt General to a Secretary. The Army Commanders
deserve a new rank - Colonel General - and should be above a Secretary but
below Cabinet Secretary.

The equalization takes place at the level of
Cabinet Secretary and Army Chief.

If this is financially a problem I have another
solution. Without increasingthe armed forces' scales,reduce the scales of the IAS and IPS till they
too have 20% shortage.

Done?

Even India 's corruption index will go down.

If the above is accepted in principle, there is a
good case to review the number of posts above Colonel. Senior ranks in the
armed forces have become devalued with more and more posts being created.

But the same pruning exercise is necessary in
the IAS and more so inthe IPS, where
Directors General in some states are re-writing police manuals â€“ one is doing
Volume I and another Volume II!

Further the civil services have such facilities as
"compulsory wait" basically a picnic at taxpayers cost. And if
you are not promoted or posted where you don't want to go they seem able to
take off on leave with much ease. In the army you will be court-martialled.
Also find out how many are on study leave. The country cannot afford this.

Let not someone say that the IAS and IPS exams are
tougher and hence the quality of the officers better. An exam at the age of 24
has to be tougher than one at the age of 16. The taxpaying citizen is not
interested in your essay/note writing capabilities or whether you know
Cleopatra's grandfather.

As a citizen I always
see the army being called to hold the pants of the civil services and the
police and never the other way round. That's enough proof as to who is really
more capable.

Also recall the insensitive statements made by
the IG Meerut in the Aarushi case and the Home Secretary after the
blasts.Further, when the IAS and IPS hopefuls are sleeping, eating and
studying, their school mates, who have joined the army, stand vigil on the
borders to make itpossible for them to do so.
Remember that the armed forces can only fight for above-the table-pay.They can never compete
with the civil services and definitely not with the police for the under the
table variety.

Finally, there is one supreme national necessity :
The political class - not the bureaucracy - which represents the real civil
supremacy, better become more savvy on matters
relating to the armed forces. Till then they
are at the mercy of the civil service, who frequently play their own little war
games. At ministerial level there are some very specialized departments -
Finance, Railways,Security (Home), Foreign and Defence - where split second
decisions are necessary. It is always possible to find netas savvy in finance,
foreign relations and railways. Security has been addressed in getting a former
IPS officer as NSA at the level of a MoS.

It is time that a professional is also brought
into the Defence Ministry as MoS! The sooner the better. In fact this will be
better than a CoDS because the armed forces will have someone not constrained
by the Army Act or Article 33, of the Constitution. Of course the loudest
howls will come from the babus. The netas must realize that a divide and
rule policy cannot work where the country's security is concerned. Recall 1962?

Our army, already engaged in activities not core to
their functions, including rescuing babies from borewells (!), should not have
to engage in civil wars over their pay scales.

I only hope our defence minister or anyone who would take a reasonable
stand for defence forces ever gets to see this article.

Sunday, 3 June 2012

SCHOPENHAUER'S LAW OF ENTROPY: If you put a spoonful of wine in a barrel full of sewage you get sewage. If you put a spoonful of sewage in abarel full of wine you get sewage!

Shailesh Gandhi is probably the only RTI activist who has had the privilege of being appointed an information commissioner under the Right to Information Act, 2005. He is an alumni of IIT Mumbai and hence hopes ran high amoung other activists who had been witnessing the blatant subversion of the law by the very information commissioners appointed in the most non-transparent and very much questionable manner. Strictly speaking the conditions laid down by the apex court for the appointment of the CVC should hold good for any similar appointments. Appointment of information commissioners certainly begs better defined procedures and wider options. As on date, of the 9 information commissioners at the Central Information Commission, 3 are from the IAS, one is the wife of an IAS officer, 2 are from the IPS, one is related to a former IFS officer, and then we have Shailesh Gandhi and a Chartered Accountant!

Shailesh Gandhi has been responsible for raising the bar with respect to disposal rates. Given the fact that the job of an information commissioner is simpler than that of a munsif, the rate of disposal expected of appeals is not less than 25 to 30 per day (the rate of disposal of complaints can definitely be even more!). While Shailesh Gandhi himself is on record claiming that he has disposed of 500 cases in a month, it appears that the CIC has accepted a nominal 300 cases per IC per month. And yes, Shailesh Gandhi has to his credit some good orders too. The notable one is his Decision No. CIC/SM/A/2011/000278/SG/12906 in Appeal No. CIC/SM/A/2011/000278/SG where the interpretation of Sec 6(3) of the RTI has been analyzed critically and very aptly decided. (The decision is available at http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_000278_SG_12906_M_58648.pdf) (It is a different matter that the illegal Office Memorandum issued by the Dept of Personnel and Training quoted in that order continues to be quoted with impunity by the PIOs leading to avoidable appeals, delay and denial of information!)

But the purpose of this blog is to prove how curtly, idiotically and treacherously this alumni of one of the most prestigious institutions in the country has managed the numbers he claims as his disposal rate.

I had submitted 4 second appeals, two each under two covering letters, on 28/5/2010 and 7/7/2010. The first two of 28/5/2010 pertained to railways and Dept of Posts (precisely SSPO, Palakkad) and the next two of 7/7/2010 both pertained to SBI, Palakkad. As it happened, one appeal each from both lots were disposed of in the usual manner (I am just stating the fact that they were disposed of. The usual,as a qualifier means not only routinely as per time frames but also waywardly and most unsatisfactorily!) But when one of the two second appeals pertaining to SBI came up for hearing itself I had made queries about the other one also but had got no response.

The failure to process the 2nd second appeal in each lot proves the following:

1. the absurd procedure for documentation followed by the CIC- supposedly the ultimate watchdog for transparency!2. the staff at the CIC are incompetent to the core, because they cannot identify an appeal from a covering letter under which two appeals are received!2. even the ICs are equally incompetent for the same reason plus they do not even seem to be perusing the documents that the citizens submit with so much effort and draining so much of their resources, because if they had been doing it even casually they would have seen the other appeal and should have taken appropriate action.

Anyhow, suffice to say, I had to submit an application under the RTI Act to get to know the status of the other two appeals. And the gist of the exercise is that the PIO provided the info sought at paras 2.1, 2.2 and 2.6 only and part of the info sought at paras 2.4 and 2.5 of only one appeal (Dy No 37981 on 28.5.20 10, Order No CIC/AD/A/20 10/001046 available at rti.india.gov.in/cic_decisions/ CIC_AD_A_20 1 0_001046 M_43703.pdf delivered on 29/9/10 and order dispatched on 15/10/2010) Even in this negligible info provided there is error because an appeal dated 28/5/1010, sent from Palakkad on that date, could not have been docketed on the same date at New Delhi! And even in this case, other information like other participants in the video conference, serial number in the the dispatch register for the order sent on 15/10/2010 etc have not been provided.

Now coming to the worst part- that is the hearing by Shailesh Gandhi and his order. It is to be noted that even the FAA had noted that the complete info had not been provided and ordered the CPIO to provide the info within 20 days. The 2nd appeal had explicitly stated that this had not been complied with. In spite of this, during the hearing conducted through video conference, Mr Gandhi curtly finished the hearing in less than one minute stating that all the info available had been provided and hence the appeal is disposed of! Does he expect us to believe that the info sought like docket numbers, receipt/dispatch register entries etc are available only some documents received/sent by the CIC?

And that is what raises the question: can an alumni of IIT Mumbai be an idiot or a traitor?

The contents of all the documents of this case are reproduced at the end of this blog for those interested in detailed study.

2. In the context of the above appeals you are requested to provide the following information:

2.1. The date of receipt and serial number of the entry in the register maintained for the purpose2.2. With resepct to the acknowledgement, the letter number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc2.3. With respect to the notice for hearing, the letter number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc2.4. The dates and mode- in person, audio conference, video conference etc-of hearing and the names, designations and location of the participants2.5. With respect to the orders, the order number and date, the date on which sent and the serial number of the entry in the register maintained for the purpose and the mode of sending- whether by ordinary post, speed post, registered post with or without acknowledgement due or courier etc2.6. Also, with respect to the orders, the url of the order if available on the commission’s website.2.7. In the case of appeals where hearings have not been conducted so far, provide the copies of file notings and the statements of the PIO/FAA, if any, received.

3. Your attention is also invited to the following e mails sent by me:

6. Please use the file reference and date in all communication on this matter.

CONTENTS OF CPIO'S REPLY:

This has reference to your RTI application dared 23.7.2011 diarized in the Commission on 27.7.2011. The reply of the Designated Officer obtained under sec 5(4) of the RTI Act , is as under:

1. Received vide dy. No. 37981 on 28.5.2010 and

1.1. registered as case CIC/AD/A/20 10/001046.

1.2. The appeal dated 28.5.2009 was attached to the appeal bearing Dy. No. 37981, so only after this RTI, one could notice that there is an appeal bearing dated 28th May, 2001 instead of 28th May, 2010. The same is being forwarded to the registry of IC (LS) for necessary action. This letter does not bear any dy. No.

1.3 & 1.4. As per Receipt Management System no such letters have been received in the C.R. Section.

8.1. The information sought should be provided completely.8.2. Penalty as mandated by the RTI Act should be imposed. 8.3. Compensation of Rs 5000.00 (Rs Five thousand only) as provided by Sec 19(8)(b) may be paid by the public authority for detriment suffered in pursuing this appeal.Continued overleaf…

9. Grounds for the relief:

9.1. Firstly, there is NO clarity in the reply, since the reply is not given parawise/2nd appeal-wise. For example, the reply to info sought at para 2.1 should have been provided as:

Though there is no info sought at para 1 of my application, the reply at para 1.2 by the CPIO is absurd as both the 2nd appeals were sent under a covering letter. Copy of this letter is attached as Annx C.

9.2. Similarly, the replies at para 1.3 and 1.4 are also blatant lies since both the 2nd appeals were sent under a covering letter. Copy of this letter is attached as Annx D. The 2nd appeal referred to at para 1.3 of the current application has been disposed off on 8th Dec 2010, vide F No CIC/AT/A/2010/000683 and the emails quoted are also proof that the issue had been brought to the notice of the concerned IC/his/her staff.

Appellant has filed first appeal dated 30th August 2011, diarized in the Commission on 6th September 2011, against response of CPIO dated 26th August 2011, on RTI application dated 23rdJuly 2011, diarized in the Commission on 27th July 2011.

2. Appeal was fixed for hearing on 29th September 2011 at 12:45 p.m. The appellant was heard on telephone while Shri Pankaj KP Shreyaskar, Shri G Subramanian and Shri TK Mohapatra, Deputy Registrar and CPIO were present in my chamber.

3. In the RTI application, the appellant had sought information in paras 2.1 to 2.7 and 3.1 and 3.2. The ground of appeal raised by the appellant is that there is no clarity in the reply, since the reply is not given para-wise/second appeal wise. He has also pointed out that no information was sought in para one of his application and reply in para 1.2 is absolute as the second appeal was then under a covering letter.

4. I find that in para 1, the appellant had referred to 4 second appeals filed by him in the Commission, for which information was sought in paras 2.1 to 2.7. Since, the reply has not gone para-wise and hence not clear, Shri Pankaj K.P. Shreyaskar, nodal CPIO is directed to send fresh information with respect to 4 second appeal filed by the appellant against Department of Railways, Posts and State Bank of India within 20 working days of the receipt of this order. The Deputy Registrars dealing with these departments are also directed to make available information to the nodal CPIO.

5. So far as information sought in para 4 of the petition is concerned, withreference to e-mail referred in para 3, it is seen that the information sought hasalready been provided, hence, needs no interference.

6. With these remarks, the appeal is disposed of.

8. The appellant may prefer an appeal u/s 19(3) of the RTI Act, 2005 before theCentral Information Commission, R. No. 412, IV Floor, Block-IV, Old JNU Campus,New Delhi – 110 067 against this order within 90 days, if he so desires.

1. The 2nd appeal is forwarded herewith.2. Please acknowledge receipt and quote the file number given here is all correspondence.3. Your attention is invited to sec 6, 7, 19 and 20 of the RTI Act and Sec 217, 218 and 219 of the IPC.4. The written responses, if any received from the PIO/FAA , should accompany the notice for hearing.5. The hearing should be conducted through video conference. There is a facility for the same provided by NIC adjoining the office of the District Collector, Palakkad, Kerala

8.1. The information sought should be provided completely.8.2. Penalty as mandated by the RTI Act should be imposed. 8.3. Compensation of Rs 5000.00 (Rs Five thousand only) as provided by Sec 19(8)(b) may be paid by the public authority for detriment suffered in pursuing this appeal.

9. Grounds for the relief:

9.1. Firstly, the grounds for relief mentioned in para 9 of the 1st appeal remains valid even now.

9.2. Next, the FAA has also proved beyond doubt that she is as incompetent as the PIO when it comes to performing the assigned tasks are concerned. For example, in para 3 she has mentioned that information has been sought in paras 2 and 3 of the application. Para 3 of the application is only references of communication about which information has been sought in para 4 of the same application! Then again, in the same para she has stated ‘….and reply in para 1.2 is absolute as the second appeal was then under a covering letter.’ I have gone over my 1st appeal with a fine comb and never came across such a statement! Also, in para 5 she has stated that the information sought in par 4 of the application has been provided. But the reply of the PIO against para 4 of the application is that ‘there is no specific notings in the case file in respect of the e mails sent by you as mentioned in the RTI application.’ This has to be presumed to be a blatant lie because either no file has been opened (consequently no action taken on the e mails) or if any file has been opened there has to be at least one noting on it!

9.2. Lastly, though the FAA has directed the nodal CPIO to provide the information within 20 working days of the receipt of the order, no such information has been received till date though it is more than 36 days since the order has been issued!

9.3. The compensation sought is nominal to cover the cost of effort and expenditure involved in pursuing the 1st appeal an 2nd appeal.

Signature of the Appellant

VERIFICATION

Verified that the details given above are true to the best of my knowledge and belief.